Two Alternatives to Divorce: Legal Separations and Post-Nuptial AgreementsMar 21, 2018
Divorce can be an emotionally devastating event. It is often the case that one party wants a divorce more than the other. If one party is committed to divorce, the court will proceed with a divorce. The court will not stop the divorce process based on a party’s objection to divorce.
If the parties wish to remain married, a legal separation or post-nuptial agreement can allow them to do so while simultaneously separating their affairs. Parties may wish to remain married, yet separate financial and personal matters, for a variety of reasons including religion, insurance coverage, tax ramifications or the emotional and social consequences of a divorce.
Legal separation is an option when both spouses are disinclined to divorce but wish to separate their financial affairs. A legal separation grants relief similar to a divorce, yet the parties remain married and cannot marry others. Parties may remain separated for life, reconcile or divorce. A legal separation may be converted to a divorce at any time.
In a legal separation, the parties agree or the court orders an award of all assets and liabilities, and decides issues of support and parenting rights/responsibilities. Some matters determined in the course of a separation would be final and others might be revisited. For example, an asset division pursuant to a legal separation is final and determined using the same standard applicable to divorces. In contrast, spousal support, child support and parenting rights might be revisited. Since final rights and entitlements to all assets would be decided in the context of the separation, the process of obtaining a legal separation can be very similar to obtaining a divorce, but without the finality. Commencement of a divorce action after a finalized legal separation will likely cause the parties to negotiate or litigate the same issues twice.
Postnuptial agreements have enjoyed increasing popularity throughout the country. Such agreements allow married parties to reach agreement on the distribution of their assets and liabilities upon death or divorce. This provides financial independence and security while allowing a couple to remain married. In the event of divorce, a well-drafted postnuptial agreement that follows the necessary formalities will likely be enforced by the court and greatly simplify the divorce process and division of property.
Courts examine various factors in determining the enforceability of a postnuptial agreement, including fairness, voluntariness, adequacy of disclosure, the ability of each party to negotiate and whether the agreement was the product of mistake, duress or misrepresentation. Each party should have counsel in the process of drafting and negotiating a postnuptial agreement. Although representation by an attorney is not an absolute requirement, it significantly increases the likelihood that the agreement will be enforced.
The determination of whether to separate, create a postnuptial agreement or divorce is very personal, fact dependent and must be made on a case by case basis in light of the parties’ goals as well as the benefits and drawbacks of each process.
About the Author: Margaret Kerouac